NICOLE K. v. UPPER PERKIOMEN SCH. DIST.

May 22, 1997

NICOLE K., by and through her parents and natural guardians, PETER K. and CATHY K.
v.
UPPER PERKIOMEN SCHOOL DISTRICT and DON PISKER, individually and in his capacity as a public school teacher at the Upper Perkiomen Middle School

Plaintiff Nicole K., a student in the Upper Perkiomen School District ("UPSD"), brings this suit under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., as well as under 42 U.S.C. § 1983 and state law. She claims that one of her teachers, defendant Don Pisker ("Pisker"), as well as students in the UPSD, insulted her while defendant UPSD idly stood by. Defendants move to dismiss the federal claims in plaintiff's Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and her pendent state law claims for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules.
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The facts alleged in plaintiff's Second Amended Complaint, accepted as true, are as follows. Plaintiff currently is a seventh grade student enrolled at Upper Perkiomen Middle School in the UPSD. In February, 1997, plaintiff enrolled in a Geography class taught by defendant Pisker. As Pisker took the roll call on the first day of class, he asked plaintiff the origin of her last name. She responded that her name was German and that her father moved to the United States from Germany as a child. Pisker exclaimed: "Oh, we have a Neo Nazi in our class!" Pisker repeatedly referred to plaintiff as "the German girl" during the remainder of that first class and told her that "Germans make good farmers." Although plaintiff's parents complained to the assistant principal about Pisker's behavior the next day, no remedial action was or has been taken. Students have taken up Pisker's charge, referring to Nicole as a "Nazi" on a daily basis at school and calling her at home with similar taunts. Nicole apparently is "depressed, agitated, irritable, afraid, and undesirous of attending school." Second Amended Complaint, P 13.

I.

Plaintiff first asserts that the defendants have violated her educational rights under 20 U.S.C. § 1681 et seq., commonly known as "Title IX." Title IX provides, in pertinent part, that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ....
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20 U.S.C. § 1681(a). It is well-established that Title IX is enforceable through an implied private right of action. Cannon v. University of Chicago, 441 U.S. 677, 709, 60 L. Ed. 2d 560, 99 S. Ct. 1946 (1979). This right of action includes a claim against a school district for money damages where a teacher sexually harasses a student or, in some circumstances, where students sexually harass other students. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992); Collier v. William Penn Sch. Dist., 956 F. Supp. 1209 (E.D. Pa. 1997). However, Title IX is inapplicable to the present case. Pisker allegedly called plaintiff a "Neo Nazi," the "German girl," and declared that "Germans make good farmers." Students in the UPSD refer to plaintiff as a Nazi. It is apparent that any discrimination plaintiff has suffered does not stem from her sex. Her Title IX claim fails.

II.

We now turn to plaintiff's second federal cause of action, brought under 42 U.S.C. § 1983. Section 1983 states that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or proper proceeding for redress.

As clarified by her brief in response to defendants' motion to dismiss, plaintiff has three alternative bases for her § 1983 claim: (1) she was subject to a hostile school environment in the UPSD; (2) UPSD had and has a policy or custom of insulting female middle school students based on their ethnic heritage; and (3) UPSD owed and breached a special duty to plaintiff to protect her from Pisker's actions.
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We first pause to note some reservation in labelling the pertinent behavior in this case "national origin" or "ethnic" discrimination. As the United States Supreme Court has noted, "the term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88, 38 L. Ed. 2d 287, 94 S. Ct. 334 (1973). Plaintiff was born in Doylestown, Pennsylvania. When Pisker referred to plaintiff as "the German girl," then, he was not referring to the country where she was born but targeting "the country from which ... her [father] came." Id. Similarly, ...

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